AGP TRADING TERMS AND CONDITIONS
“AGP” means AGP (VIC) PTY LTD (ACN 626 188 958).
“Deposit” means the deposit required by AGP from you.
“Default Event” means where:
- you fail to make payment by the due date of any amount payable to AGP;
- a payment due to AGP is unable to be processed due to insufficient funds;
- you commit a material breach a clause of these Terms which is not capable of remedy;
- subject to clauses 415D and 415E of the Corporations Act 2001 (Cth):
- you are dissolved, wound up or placed into bankruptcy or an order is made by a court or a resolution is passed or the party gives notice of its intention that you be dissolved, wound up or placed into bankruptcy;
- you have a liquidator, provisional liquidator or trustee in bankruptcy is appointed in respect of you or your property;
- you have a controller appointed in respect of you or your property or takes possession or gains control of your property;
- except to reconstruct or amalgamate while solvent, you enter into, or resolve to enter into, a scheme of arrangement, administration, deed of arrangement or composition with, or assignment for the benefit of, all or any class of your creditors, or you propose a reorganization, moratorium or other administration involving any of your creditors;
- you are (or state that you are) insolvent or an insolvent under administration (each as defined in the Corporations Act) for more than 14 days;
“Domestic Order Form” means a document provided to you by an Estimator which contains drawings and Quotation details of the Works required at the Site.
“Exclusions” means the items which are expressly excluded in a Quotation from a scope of Works.
“Estimator” means the AGP sales representative who attends Site to provide you with a Quotation.
“Goods” means any goods or materials provided by AGP or delivered to site by AGP in the course of the Works.
“Installation” means the day on which the Works performed.
“Installer” means the AGP subcontractor who provides the Works at the Site.
“Intellectual Property” means all copyright, trademarks, designs, rights to inventions, specifications, drawings, confidential information (whether registrable or not) owned or licensed by AGP in respect of the Goods or Works, or their installation, operation, location or design.
“Invoice” or “Invoices” means any written invoice provided by AGP to you concerning the supply of Works, whose terms shall override these Terms to the extent of any inconsistency.
“Property” means all equipment and property owned by AGP and delivered to or used on Site in the course of the Works by AGP or any other person.
“PPSA” means the Personal Property Securities Act 2009.
“Works” means the services supplied by AGP to you as set out in the Quotation.
“Terms” means these Terms and Conditions.
“Quotation” means any written quotation or Domestic Order Form provided by AGP to you which contains a schedule or drawings of the Works to be supplied by AGP.
“Obstacles” means any obstacles, hindrances or roof features located at the Site in the surrounding area to where the Works will be performed.
“PPS clauses” means the clauses under the section of these Terms with the heading “Personal Properties Securities Act”.
“Purchase Order” means a purchase order sent by you to AGP via email pursuant to a Quotation.
“Site” means the site where the Goods are to be delivered and installed and the Works performed.
“Variation” means any change or deviation in the scope of Works contained in a Quotation issued to you.
“You” or “your” means a legal person, firm or corporation, severally and jointly if there is more than one.
- The documents comprising the binding agreement between you and AGP must be read in the following order of precedence:
- any warranty document provided to you by AGP;
- these Terms; and
- a Quotation issued to you by AGP; and
- any written correspondence sent by AGP to you after the date of the Quotation.
- Where any conflict occurs between the provisions of any two (2) or more of the documents referred to in clause 2, the documents lower in the order of precedence prevail to the extent of any inconsistency to those documents higher in order of precedence.
- You agree that these Terms override any documentation, including but not limited to any terms and conditions of trade, that you may provide to AGP to the extent of any inconsistency.
- An AGP Quotation is valid for thirty (30) days, after which prices may be subject to change.
- A Quotation is an estimate only and AGP reserves the right to change its Quotation price, notwithstanding your acceptance of the Quotation, where cost or scope of work increases due to factors beyond AGP’s control, including but not limited to:
- increases in the cost of labour;
- increases in the cost of raw materials;
- where you request a Variation; or
- where you require AGP provide additional services due to the identification of unanticipated and unforeseen circumstances that are beyond AGP’s control, including but not limited to:
- limited access to Site on the date scheduled for Installation;
- the availability of required Property;
- safety concerns;
- works required to be completed by third parties before AGP can commence or progress the Works;
- where existing plumbing issues cause severe blockages underground or in existing pipes and additional equipment or work is required beyond the scope of work; or
- where excessive debris in gutters requires additional time and equipment to clear and clean.
- Where any amendment to a quotation is required AGP will send you confirmation in writing of your agreement to a variation of any costs quoted before work is undertaken.
- AGP will provide you with written notice of any a change in pricing arising from Unforeseen Circumstances and may re-issue you with revised Quotation, were necessary.
- You are deemed to have read, understood and accepted to be bound by these Terms upon the earlier of:
- paying your Deposit;
- receiving a Quotation and then:
- continuing to provide AGP with instructions,
- requesting AGP’s assistance, whether verbally or in writing,
- accepting services provided by AGP; or
- issuing AGP with a Purchase Order.
- Your acceptance of AGP’s Quotation constitutes a binding agreement between you and AGP, subject to these Terms.
- AGP may, in its absolute discretion and without any liability to you whatsoever, refuse to proceed with a scope of Works even after payment of the Deposit or accept a Purchase Order from you, as applicable.
- By accepting AGP’s Quotation and these Terms you acknowledge that AGP’s Terms override any other terms provided by you prior or subsequent to you receiving the Terms in respect of the subject matter to which they apply.
- You acknowledge and agree that seven (7) days after you have paid the Deposit, the Deposit is not refundable, as materials have been ordered, cut and prepared according to customised measurements by this time by AGP. If you wish to cancel or discontinue the scope of Works after this period, then AGP will retain your deposit without any liability to you whatsoever.
- If you advise AGP that the scope of Works is urgent and materials are customised prior to the expiration of the seven (7) day period referred to in clause 12, then the Deposit is not refundable from the date on which the materials are customised.
- Unless otherwise stated, all costs and prices included in a Quotation issued to you are inclusive of all taxes, GST, delivery transport, permit fees, equipment hire, insurance and any other fees, imposts or other charges incidental to the performance of the Works (Additional Costs).
- Unless otherwise agreed between the parties in writing, you are solely responsible for all Additional Costs.
- Unless otherwise agreed to by AGP in writing, AGP will not supply any Goods to you for you to install or for you to procure a third party to install.
- Unless otherwise agreed between the parties in writing, AGP will issue its Invoice to you for the balance of the cost of the scope of Works upon receipt of the Deposit.
- Time for payment of an Invoice is of the essence. You must pay an Invoice in accordance with the payment terms displayed on an Invoice, unless otherwise agreed to between the parties in writing.
- Payment of an Invoice must be without any deduction or set-off and in cleared funds. AGP does not accept any liability for back, merchant charges or offsets with respect to the amounts payable pursuant to an Invoice, unless otherwise agreed by AGP writing.
- Receipts for payment of an Invoice will only be issued upon request.
- You may request that AGP offer you a payment plan in relation to the payment of the balance of the cost of the scope of Works (Payment Plan). The terms of the Payment Plan will be agreed by you and AGP in writing, including but noy limited to:
- you must execute a form provided to you authorising AGP to deduct the Instalments from your nominated credit card;
- you undertake to ensure that the automatic deduction of the Instalments occurs without interruption or issue;
- where the funds for the Instalments cannot be accessed by AGP on the nominated deduction date, AGP will contact you to request payment of the entire balance of the cost of the Works or otherwise reschedule the automatic deduction at its absolute discretion; and
- you may, at any time, pay off the balance of the cost of the Works to AGP.
- If a Default Event occurs, then all money which would become due becomes immediately due and payable to AGP without further notice to you.
- In addition to clause 22, where a Default Event occurs, AGP may, without prejudice to any other remedy available to it and without any liability:
- cease or suspend the Works and delivery of any Goods required to progress the Works until such time as all outstanding payments are received by AGP;
- take possession of any Goods supplied by AGP at any location that are not paid for by you;
- charge you interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4 per cent (4%) for the period from the due date until the date of payment in full;
- charge you for, and you agree to indemnify AGP against, all costs and expenses (including without limitation all legal costs and expenses on a full indemnity basis) incurred by AGP resulting from the default and in taking any action to enforce compliance with these Terms; and
- by written notice to you, terminate any contract with you to which the outstanding payment relates, subject to applicable law, without liability or any effect on AGP accrued rights under these Terms or any other agreement or arrangement with you.
- AGP may, in its absolute discretion, allocate or re-allocate any payment received from you towards any outstanding Invoice that AGP determines appropriate and may do so at the time of receipt or at any time afterwards without any liability to you.
Exclusions & Variations
- For clients that retain AGP to do Works at an existing and / or residential premises (Domestic Clients):
- an Estimator will attend Site;
- the Estimator will provide you with a Quotation or Domestic Order Form; and
- where the drawings in the Quotation or Domestic Order Form have solid or unbroken lines (whether single or double), these areas are where AGP will provide the Works; and
- where the drawings in the Quotation or Domestic Order Form have broken or dotted lines, these areas are excluded from the Works.
- For clients that retain AGP to do Works off a plan or on a commercial premises (Commercial Clients):
- AGP will highlight the areas on a plan that are included in the scope of Works to be provided by AGP; and
- AGP will confirm via email to you whether there are any specific exclusions or inclusions in the scope of Works.
- For the avoidance of any doubt, in respect of both Domestic Clients and Commercial Clients, AGP has discretion to advise you of inclusions and exclusions to the scope of Work by any other written method.
- Unless otherwise specified by AGP in a Quotation, the scope of Works will ordinarily include gutter cleaning.
- If you have already received a Quotation or Invoice in respect of certain Works, and:
- you request a variation to a scope of Works; or
- where applicable, AGP has issued you a Quotation based on a plan only and, upon the structure being built and AGP conducting an inspection, AGP identifies that further works are required at the Site;
- AGP will provide you with:
- a separate and/or additional Quotation confirming the scope of the Variation, which may include updated drawings, for that Variation; or
- an email confirming the scope of the Variation and associated fees.
- You accept that each Variation is subject to these Terns;
- You must accept the Variation Scope in writing.
- If you do not accept Variation Scope in writing, but continue to provide AGP with instructions after receiving the Variation Scope, you will be deemed to have accepted the Variation Scope, including liability for any additional charges arising from the Variation, pursuant to these Terms;
- Where a Deposit is required in respect of a Variation Scope, AGP will not commence the Works in respect of the Variation until it receives a Deposit from you for that Variation, unless otherwise agreed by AGP in writing.
- AGP may issue you with a new Invoice for the Variation Scope only, which may result in an increase in the total price for the Works, which you agree to pay in full when invoiced by AGP.
- Invoices for Variations must be paid for pursuant to these Terms and any other additional terms contained in that Invoice.
- In respect of Works provided to Commercial Clients that are based on plans only, AGP reserves the right to issue separate Quotations with respect to different stages of those Works, consistent with the staged progression of a build.
- You shall indemnify AGP against, any costs, losses or liability arising from your failure to accept the scope of any Variation in writing, where such failure prevents AGP from proceeding with the Works or causes any delay in the provision of the Works.
Contact between you and AGP
- AGP usual working hours are from 9am to 5pm Monday to Friday, except for public holidays.
- You can contact AGP via phone on (03) 9338 4611 or via email [email protected].
- If you contact any representative of AGP via phone call, AGP may confirm your instructions via email and request you reply acknowledging your instructions.
- The Works will be performed, and the Goods supplied to the address supplied by you.
- You must:
- make the Site accessible to AGP on the date of installation agreed between you and AGP;
- allow AGP’s employees and representatives uninterrupted and unencumbered access to the Site and the Goods at all times; and
- ensure the Site is clean, safe and compliant with all applicable occupational health and safety legislation and / or regulations.
- If, through Unforeseen Circumstances, notwithstanding that the Works may have commenced, AGP reasonably determines it is unable to complete the Works, then AGP may, by written notice to you and without any liability to you:
- make changes to the Works supplied or intended to be supplied, provided that the end performance and nature of the Works is not materially prejudiced; or
- cancel the Works or remainder of the Works.
Schedule for installation and estimated duration of Works
- Upon issuing you with a Quotation, AGP will advise you of the anticipated time frame for the Installation. If this estimated time frame cannot be met and needs to be extended due to reasons, including but not limited to the Unforeseen Circumstances, a representative of AGP will contact you as soon as practicable to notify you of the extent of the delay.
- In the week prior to Installation, AGP or an AGP installation contractor will contact you to confirm the date of Installation. Unless you confirm this date with AGP, AGP reserves the right to reschedule your allocated date for Installation to a later date.
- AGP may provide you with a verbal or written projected duration of the Works for:
- installation of any Goods contained in the scope of Works; or
- completion of the Works;
however, this is an estimate only and AGP will not be liable for this estimate being inaccurate or subject to any delays (Duration).
- Where the estimate provided for the Duration of the Works is impacted or otherwise affected by Unforeseen Circumstances, which are outside AGP’s direct control, then AGP will not be liable for any damages, loss or expenses incurred by you.
- If you notify AGP that the scope of Works must proceed on an urgent basis, then AGP will use its best endeavours to accommodate your request. You acknowledge and agree that AGP cannot guarantee that it will be able to provide any urgent Works according to any specific timeline.
- You are responsible for ensuring the accuracy, reliability and completeness of any specifications and requirements in respect of the Works and giving AGP any necessary information relating to the Works upon AGP’s request and within a reasonable time.
- AGP will not be held responsible for, and you indemnify AGP against, any delays or deficiencies in the Works where you provide AGP with incorrect, inaccurate or incomplete instructions or where you unreasonably delay in providing such instructions.
- If AGP cannot progress or complete its scope of Works due to incorrect, inaccurate, or incomplete instructions provided by you, or an unreasonable delay in receiving your instructions, AGP reserves the right to:
- extend the Duration; or
- provide you with a new Quotation for the entire scope of Works or a Variation to an existing scope of Works;
- vary the costs itemised in the Quotation provided to you and accepted by you;
- discontinue the Works; or
- issue an Invoice for an amount equivalent to the value of Works that have commenced and / or have been completed in accordance with these Terms;
at AGP’s absolute discretion and without any liability to you whatsoever.
- Whilst AGP will take all care to avoid damage to any Obstacles during the performance of the Works:
- you agree to indemnify AGP in respect of all liability claims, loss, damage, costs, fines and any repairs required as a result of accidental damage to Obstacles not precisely located and notified to AGP in advance; and
- AGP may elect to proceed to take any action it deems appropriate under clause 47.
Consumer Guarantees and Liability
- AGP acknowledges that where the Australian Consumer Law (ACL) applies, there are certain consumer guarantees that apply to the Works, in particular:
- If there are any problems with the Works performed by AGP that are minor and can be fixed, AGP will determine how to rectify the problem at its cost; and
- If there are any problems with the Works performed by AGP that are major and cannot be rectified, then you can seek a refund or seek compensation pursuant to the ACL.
- Notwithstanding clause 49 of these Terms, and except as specifically provided, no other warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or services provided in the course of the Works, is provided, to the maximum extent permitted by law.
- Nothing in the Terms is to be interpreted as excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of services which cannot be so excluded, restricted or modified.
- To the maximum extent permitted by law, AGP is not liable for, and you indemnify AGP against:
- any indirect or consequential losses or expenses suffered by you or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party; or
- any loss or damage suffered by you or any third party where AGP has failed to deliver Goods or where AGP delays the Works or suspends the Works.
- AGP offers a limited warranty for its Goods and the Works (Warranty) set out in the warranty letter provided to you after your Invoice has been paid in accordance with clause 18 (Warranty Document).
- The Warranty is given subject to and in addition to other rights and remedies you have under any law in relation to the Goods and Works to which this warranty relates, including but not limited to the rights provided by the ACL.
- To the maximum extent permitted by law, the Warranty does not cover the following circumstances:
- where the Goods not cared for or used, serviced or maintained in accordance with the product manuals or instructions provided by AGP;
- where any products are used in conjunction with the Goods that are not specified for use with same or not authorised in writing by AGP for use with same;
- defects arise due to misuse, alteration, unauthorised repair or negligent handling, lack of care neglect or accident by you, including but not limited to, handling or cleaning of the Goods;
- personal injury, property damage, consequential or economic loss, however caused.
- where the Goods have been modified, repaired or serviced by someone other than AGP; and
- where the Goods have been subject to abnormal conditions, whether of temperature, water, humidity, pressure, stress or similar.
- To the maximum extent permitted by law and other than in these Terms and the Warranty Document, AGP makes no representations or warranties of any kind whatsoever express or implied in respect of the Goods or Works.
- All Warranty claims must be made within the timeframe stipulated in the Warranty Document for the Warranty to be honoured by AGP.
- If a defect appears in the Goods or Works before the end of the Warranty period and AGP finds the Goods or Works to be defective in materials or workmanship, AGP will, in its sole discretion, either:
- replace or repair the Goods or the defective part of the Goods free of charge;
- cause the Goods or the defective part of the Goods to be repaired or replaced by a qualified repairer free of charge; or
- re-supply the Works or part of the Works.
- If a fault covered by Warranty occurs, the Customer must contact AGP by calling (03) 9338 4611 and provide details of the warranty claim and proof of purchase.AGP will, where possible, assess the claim over the telephone and explain the Warranty assessment process to you.
- The cost of AGP repairing or replacing Goods and all labour associated with same for any defect to which the Warranty applies, will be borne by AGP. AGP warranty issues must be attended to by AGP. AGP will not be liable for the costs of any third party unless express prior consent is provided by AGP in writing.
- The Warranty is limited to defects in the materials or workmanship of the Goods and Works and does not cover ancillary or spare parts or the replacement of parts due to fair wear and tear.
- AGP will not be responsible for rectifying any alleged defects which arise from an item that is listed as an Exclusion in a Quotation or arises from services provided by a third party on Site.
- For the avoidance of any doubt, these Terms override the Warranty Document to the extent of any inconsistency except for the Warranty periods provided for in the Warranty Document.
Bird Proofing Guarantee
- In addition to the Warranty, AGP provides a 100% bird proofing guarantee where certain bird proofing solutions are included in the scope of Works (Bird Proofing Guarantee).
- The Bird Proofing Guarantee provides that AGP guarantees that no birds will be able enter your roof space via guttering or where mesh is installed by AGP once Works are completed. For the avoidance of any doubt, this warranty does not cover situations where birds nest externally on your roof surface or any other voids in your roof space.
- The Bird Proofing Guarantee:
- only applies where all entry points on your roof are covered by mesh installed by AGP, including but not limited to gutters, valleys and gable; and
- does not apply to situations where any creature other than birds, including but not limited to vermin, enter your roof space or come to reside on your roof.
Information Collection & Privacy
- You authorise AGP to collect certain personal information from you, including phone number, email, and address (Private Information).
- AGP uses your Private Information to contact you, generate Quotations and Invoices, communicate Works specifications to an Installer or contractor and conduct other related administrative activities.
- AGP shall have no liability whatsoever under these Terms or the Quotation to the extent that its performance of the Works is delayed or prevented by circumstances beyond its reasonable control, including but not limited to:
- import or export restrictions relating to materials required to perform the Works;
- industrial disputes, strikes, lockouts;
- act of God, explosion, flood, tempest or fire;
- act of terrorism, act of war, sabotage, insurrection, civil disobedience or requisition; or
- pandemic or public health emergency, a government or health directive, or governmental action.
- Until AGP receives full payment in cleared funds for Goods supplied by it to you:
- title and property in the Goods remains vested in AGP and does not pass to you, even if those Goods have been incorporated into the Works; and
- where amounts are outstanding to AGP for Goods and a demand for payment has not been fully met, AGP may without notice to you enter the Site of the Works and dismantle, detach and remove them (notwithstanding that the Goods may have been attached to other Goods not the property of AGP, where AGP deems it to be safe), and for this purpose you irrevocably licence AGP to enter the Site and also indemnify AGP from and against all costs, claims, demands or actions by any party arising from such action.
- AGP may leave its Property on Site during the Works where necessary.
- At all times, AGP remains the exclusive owner of all Property and exclusively holds all rights, title and interest in the Property that is located on Site during the Works and you agree that the Property:
- is used only by AGP and its employees or agents to provide the Works on Site;
- is not hired or leased to you or any other party whilst it is on Site;
- at no times does the tile in any Property pass to you or any other party at any time;
- at no time are you or any other party granted any interest or right whatsoever in the Property; and
- you are prohibited from granting any interest or right to or for the benefit of any other party in the Property.
Risk and Insurance
- Unless otherwise agreed in writing, the risk in the Goods and all insurance responsibility for theft, damage or otherwise in respect of the Goods will pass to you immediately on the Goods being unloaded at the Site.
- You assume all risk and liability for loss, damage or injury to persons or to your property or third parties arising out of the use or possession of any of the Goods or Works performed by AGP.
- You ensure that you have suitable protection and insurance for the Goods and the Works from the delivery of the Goods or commencement of the Works, whichever is earlier.
- You acknowledge that you have no proprietary right or interest in the Intellectual Property.
- You must not register or record or attempt to register or record anywhere in the world the Intellectual Property or any part thereof, or anything similar to it, or aid or abet anyone else to do so.
- If a dispute, controversy or claim arises out of, relates to or is connected with these Terms (Dispute), then AGP reserves the right to suspend works until the Dispute is Resolved.
- The parties agree to act in good faith to try to settle the Dispute as follows:
- Within fourteen (14) days of the date the Dispute arises, persons with the requisite authority to bind each party are to participate in a meeting in the interests of reaching a resolution that is mutually agreeable to both parties; then
- If a resolution cannot be reached pursuant to clause 80(a), then either party can apply to settle the dispute via mediation, with a mediator chosen by the parties to the dispute, and:
- the parties to the dispute cannot agree on the identity of the mediator or the location and date and time of the mediation, the parties will request the President for the time being of the Law Institute of Victoria to nominate a mediator and the location and date and time of the mediation;
- the cost of the mediator and the mediation (apart from each party’s legal costs) will be borne equally between the parties;
- the place of the mediation must be in Melbourne, Australia;
- any resolution reached at mediation will be binding on the parties subject to an appropriate deed of settlement and release being signed.
- If the parties cannot resolve the Dispute pursuant to clause 79(b), the dispute shall be resolved by arbitration in accordance with the ACICA Arbitration Rules and
- the dispute will be arbitrated by a person agreed by the parties or, failing agreement, on the nomination of an arbitrator within fourteen (14) days of the referral to arbitration, a barrister appointed by the Chairperson of the Bar Council of Victoria (or his or her deputy) on the application of either party;
- the cost of the arbitrator and the arbitration (apart from each party’s own respective legal costs) will be borne equally between the parties.
- the place of arbitration shall be Melbourne, Australia;
- to the maximum extent permitted by law, the decision of the arbitrator will be final and binding on the parties; and
- each party will use all reasonable endeavors to ensure that the arbitrator is able to decide as soon as is practical, including, but not limited to, providing the arbitrator with all information relevant to the dispute in a timely manner.
- The law of Victoria from time to time governs these Terms. The parties submit to the non-exclusive jurisdiction of the courts of the Victoria.
- AGP can amend these terms by providing written notice to you on reasonable notice. Any amendments to these Terms will apply to Quotations issued by AGP and Purchase Orders placed by you after the date of the notice.
- Any typographical, clerical or other errors or omissions in any sales literature, Quotations, Invoices or other documents issued by AGP to you are subject to correction by AGP by advance written notice to you without liability.
- You may not assign, transfer or otherwise deal with any of your rights and obligations pursuant to these Terms without the prior written consent of AGP, which consent shall not be unreasonably withheld.
- A notice must be in writing and handed personally or sent by email or prepaid mail to the last known address of the addressee:
- Notices sent by pre-paid post are deemed to be received upon posting; and
- Notices sent by email are deemed to be received upon the computer confirming such transmission.
- These Terms, in conjunction with a Quotation, constitute the entire agreement of the parties in respect of the subject matter of this these Terms, and they supersede all prior discussions, undertakings and agreements unless otherwise agreed in writing by both parties.
- Failure by AGP to enforce any of these Terms shall not be construed as a waiver of any of AGP’s rights.
- If any of the Terms are unenforceable it must be read down to be enforceable or, if it cannot be so read down, the term must be severed from these Terms without affecting the enforceability of the remaining terms.